Rape is the intentional or reckless penetration, with the accused’s penis, of the victim’s vagina, anus or mouth, in circumstances where the victim does not consent to the penetration and where the accused either knows that the victim does not consent or has no reasonable belief that the victim is consenting.
In accordance with s3(6) of the Criminal Procedure (Scotland) Act 1995, rape can only be prosecuted on indictment in the High Court. The maximum penalty is life imprisonment.
s52 of the 2009 Act abolishes the common law offence of rape (in other words, all charges of rape with an allegation date of 14th July 2009 onwards must be charged as contraventions of s1 of the 2009 Act). For allegations that date from before 14th July 2009, the common law definition of rape is given in the following case:
“the general rule is that the actus reus of rape is constituted by the man having sexual intercourse with the woman without her consent; in the case of females who are under the age of 12 or who for any other reason are incapable of giving such consent, the absence of consent should, as at present, be presumed; and mens rea on the part of the man is present where he knows that the woman is not consenting or at any rate is reckless as to whether she is consenting…”reckless” should be understood in the subjective sense…”
The Lord Justice General at paragraphs 44-45
So, the two definitions are somewhat similar, but the definition in the 2009 Act provides that a male can rape another male, and that anal or oral penetration can count as rape (both contrary to the common law definition).
This page will focus on the crime of rape as constituted in the 2009 Act.
“Consent” is defined in s12 of the 2009 Act as “free agreement”. s13 goes on to set out what free agreement does not mean:
Most of the circumstances in s13(2) are self-explanatory. s13(2)(a) means that consent cannot be given when the complainer is incapacitated through drink or drugs. “deception… as to the nature or purpose of the conduct” in s13(2)(d) might be A deceiving B that penetration is as part of a legitimate medical procedure.
s14 provides that an unconscious person (whether asleep or otherwise) cannot consent:
This point was explored in more detail in the following recent case:
- The appellant had been charged with raping a sleeping woman.
- He appealled against the refusal to allow him to lead evidence that the woman consented to sex on the basis that it was a facet of their relationship that he would occasionally wake her up by vaginally penetrating her.
- It was argued on behalf of the appellant that, in the context of a continuing relationship (as opposed to a one off encounter), reasonable belief in consent could arise from “the patterns, accommodations and negotiations in the relationship” [paragraph 15]. In this way, the complainer had consented to this sexual activity in advance.
- The appeal was refused. The court held that section 14 of the 2009 Act is clear. Taken with s15(2) [see below], “consent which is expressed at a point materially remote from the conduct said to constitute the crime, cannot provide a defence in terms of the statutory provisions” [paragraph 27].
s15 provides for the scope of consent, and for the effect of its withdrawal:
s15 in particular emphasises that ensuring consent is an ongoing obligation (e.g. consent to a kiss, or oral sex, does not mean that consent to vaginal intercourse should be assumed). It also emphasises that a withdrawal of consent during penetration must be immediately acted upon.
The absence of reasonable belief in consent is an essential part of the crime of rape, and must be proven by the Crown. Section 16 of the 2009 Act reads as follows:
“[T]he absence of a belief, of some description, has always been a requirement, at least in the sense that the accused has to have the requisite criminal intent. That is an essential part of many crimes, but it does not, as such, require separate formal proof. It is an inference drawn from facts (such as the use of force) themselves proved by corroborated evidence.” [Lord Justice-General Carloway at paragraph 23]
A standard formation for the notice might be: “[accused’s name] pleads not guilty to the charge on the indictment and, specially and without prejudice to said plea, states that the sexual activity referred to in the charge, took place with the consent of [complainer] and with the accused’s reasonable belief that she so consented.”
It is widely-understood that, in general, proving charges of rape is relatively difficult, due to the fact that most allegations of rape arise from “behind closed doors”. This applies to most sexual offences.
As indicated above, the Crown must prove, by corroborated evidence:
- that A penetrated B’s vagina, anus or mouth with A’s penis;
- that B did not consent to it, and;
- that A did not have a reasonable belief that A consented to it
There are a vast number of reported cases that deal with what can and cannot corroborate B’s account of events. Without wishing to set them all out in detail, the following are examples of “adminicles [articles] of evidence” that might be available, in any given case, to enable the Crown to present the case to the jury (as opposed to the accused being acquitted on a “no case to answer” submission due to insufficient evidence):
- DNA evidence of A’s semen inside B, or found on B’s clothing;
- Evidence of B having suffered injuries (whether internally or externally) that are indicative of A having used force in order to penetrate B;
- Evidence from others of B being incapacitated through drink or drugs shortly before penetration occurs (e.g. a witness helping B into bed at a party due to their intoxication, then A being seen to enter the bedroom);
- Evidence that B was seen to be distressed afterwards, if that distress could have been caused (at least in part) by what B alleged had happened;
- Evidence of admissions made by A later, either to the police or to others.
Section 50(1)(a) of the 2009 Act allows for an accused person to be convicted of an alternative crime, if “the jury are not satisfied that the accused committed the offence charged but are satisfied that the accused committed the alternative offence (or as the case may be one of the alternative offences)”.
In the case of rape, the alternatives are as follows: